Why de-judicialize? Explaining state preferences on judicialization in World Trade Organization Dispute Settlement Body and Investor-to-State Dispute Settlement reforms

• 成果类型: Article
• 署名作者: Basedow, Johann Robert
• 署名单位: University of London; London School Economics & Political Science
• 刊物名称: REGULATION & GOVERNANCE
• ISSN/ISSBN: 1748-5983
• DOI: 10.1111/rego.12431
• 发表日期: 2022
• 页码: 1362-1381
• 关键词: international courts; POLITICS; trustees; DESIGN; agents

摘要

Judicialization scholarship suggests that states must seek the de-judicialization of international dispute settlement mechanisms to regain regulatory space. Why then do some states seek a de-judicialization yet others increased judicialization of dispute settlement mechanisms in their pursuit of regulatory space? This article advances a twofold argument. First, the concept of judicialization has been erroneously conflated with state perceptions of regulatory space under dispute settlement mechanisms. States aspiring to consolidate regulatory space may pursue de-judicialization and increased judicialization alike. Second, states' preferences for de-judicialization or increased judicialization to regain regulatory space should largely depend on conceptions of legitimate international law as either intergovernmental contracts or cosmopolitan quasi-constitutional order. The article illustrates these arguments at the example of US and EU efforts to reform the Dispute Settlement Body of the World Trade Organization and investor-to-state dispute settlement. Both seek to increase regulatory space. Yet, the USA pursues de-judicialization while the EU promotes judicialization.